Emily Edwards
Posted on 16 Mar 2021

Whistleblowing Compensation

BMI Healthcare Ltd V Mr M Shoukrey: UKEAT/0336/19/DA

The Employment Appeal Tribunal has recently considered the calculation of life-long loss of earnings in whistleblowing cases.

What is whistleblowing?

Whistleblowing is a term used when an employee (or worker) passes on information concerning wrongdoing, typically in the workplace. If certain criteria are satisfied, then this will be a 'protected disclosure'. If the reason or principal reason for the dismissal of an employee is that they made a protected disclosure then they will have been automatically unfairly dismissed. In addition, they have the right to not suffer a detriment on the grounds that they have made a protected disclosure. A worker may pursue a claim in the Employment Tribunal and there is no limit to the amount of compensation that may be awarded (unlike in respect of ordinary unfair dismissal claims). Claims related to whistleblowing must be submitted before the end of the period of three months beginning with the date of the detrimental act or incident. For more information on time limits for whistleblowing claims, please see our previous article here.

Facts of the BMI Case

The Claimant was a gynaecologist who commenced employment with Dorset County Hospital NHS Trust (the Trust) in Dorchester on 1 June 2011. The Claimant was born on 24 October 1973, so was 37 when he joined the Trust. The Claimant was not an employee of the Respondent, but was a worker for the purposes of the Employment Rights Act 1996 (ERA).

On 9 and 16 February 2015, the Claimant performed operations at the Winterbourne Hospital. Concerns were raised about the Claimant after the operations. On 18 February 2015, the Claimant raised a complaint against a well-established colleague concerning an operation the colleague performed on a private patient of the Claimant at BMI Healthcare Ltd without first notifying the Claimant. The Claimant considered that the procedure employed by his colleague was unsafe, and that his actions in operating without telling the Claimant were unprofessional. The colleague was long established at the Respondent and, in turn, complained about the Claimant's actions. On 26 February 2015, the Respondent suspended the Claimant's practising privileges pending investigation of the operation he had performed on 16 February 2015.

On 16 July 2015, the Claimant submitted his complaint to the Employment Tribunal and, on 24 July, he complained to the CQC about his colleague and the alleged failure of the Respondent to address or investigate the Claimant's initial disclosure and clinical concerns. The Tribunal accepted that this was a protected disclosure.

The Claimant resigned his practising privileges with the Respondent by letter dated 7 September 2016. The Claimant's case was that he resigned in response to the unlawful detriments to which he had been subjected by the Respondent as a result of making protected disclosures, whereas the Respondent claimed that he resigned for other reasons.

ET Decision

The Claimant succeeded in his claim against the Respondent. The ET held the Claimant had been subjected to detriments because of his whistleblowing and the detriments included the decision to suspend him, ignoring his legitimate concerns and withdrawing his practising privileges.

The Respondent was ordered to pay the Claimant £920,202 in total, including:

  1. £30,000 for injury to feelings;
  2. £10,000 of aggravated damages; and
  3. £880,302 of loss of earnings from private practice. The future losses ran from the date that the Claimant resigned his practising privileges at the Winterbourne Hospital on 7 September 2016, when he was 42. A considerable majority of this figure was in relation to future loss.

EAT Decision

There was no appeal in respect of the awards for injury to feelings, aggravated damages or loss of private practice earnings in 2015. The grounds of appeal were as follows:

  1. Failure to consider Respondent's Arguments re causation of loss;
  2. Error of law in failing to remember/apply its own factual findings on discount;
  3. Inadequacy of reasons/error of law/perversity in determining what the Claimant would have earned in future and for how long he would have done so; and
  4. Inadequacy of reasons/error of law/ perversity in addressing mitigation.

The EAT held the ET had potentially taken an overly generous view of his likely career losses and upheld all four appeal grounds and remitted the claim to a new Tribunal panel to reassess the Claimant's loss of earnings.

What this means for employers

As with all ET decisions, the decision of the BMI case largely stands on its own facts, but will be of use to Respondents seeking to argue against overly optimistic projections of career losses.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.